State v. Smith, s. C–150445

• Decision Date: 22 June 2016
• Docket Number: Nos. C–150445,C–150446.,s. C–150445
• Citation: 68 N.E.3d 114,2016 Ohio 3521
• Parties: STATE of Ohio, Plaintiff–Appellee, v. William SMITH, Defendant–Appellant.
• Court: Ohio Court of Appeals

68 N.E.3d 114

2016 Ohio 3521

STATE of Ohio, Plaintiff–Appellee,

v.William SMITH, Defendant–Appellant.

Nos. C–150445

C–150446.

Court of Appeals of Ohio, First District, Hamilton County.

June 22, 2016.

Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and Christopher Liu, Assistant City Prosecutor, for plaintiff-appellee.

Raymond T. Faller, Hamilton County Public Defender, and David Hoffmann, Assistant Public Defender, for defendant-appellant.

OPINION

STAUTBERG, Judge.

{¶ 1} Defendant-appellant William Smith presents on appeal a single assignment of error challenging the Hamilton County Municipal Court's judgments overruling his postconviction motions to vacate his 2004 convictions for criminal child enticement in violation of R.C. 2905.05. Because Smith was convicted under an unconstitutional statute, we reverse the court's judgments.

The Appeals are Not Moot

{¶ 2} We reject at the outset the state's argument that Smith's appeals from the overruling of his motions must be dismissed as moot because he had, in August 2007, completed the sentences imposed for his convictions and failed to demonstrate a collateral disability or loss of civil rights arising from his convictions.

{¶ 3} The doctrine of mootness is founded upon the "long and well established" principle that courts have a "duty * * * to decide actual controversies between parties legitimately affected by specific facts and to render judgments which can be carried into effect." Fortner v. Thomas, 22 Ohio St.2d 13, 14, 257 N.E.2d 371 (1970). Thus, a court has no duty to decide a matter that is "moot in the sense that the court cannot provide the appellant with any meaningful relief." State v. Carr, 1st Dist. Hamilton No. C–140172, 2015-Ohio-2529, 2015 WL 3934899, ¶ 9, citing Miner v. Witt, 82 Ohio St. 237, 92 N.E. 21 (1910), syllabus.

{¶ 4} Smith's child-enticement offenses were first-degree misdemeanors. R.C. 2905.05(C). An appeal challenging a misdemeanor conviction is moot, and thus subject to dismissal, if the offender has voluntarily completed his sentence and has failed to offer evidence permitting an "inference" that he has a "substantial stake in the judgment of conviction," by showing that, because of his conviction, he "will suffer some collateral disability or loss of civil rights." State v. Wilson, 41 Ohio St.2d 236, 237, 325 N.E.2d 236 (1975), syllabus. Accord Cleveland Hts. v. Lewis, 129 Ohio St.3d 389, 2011-Ohio-2673, 953 N.E.2d 278, ¶ 17–19.

{¶ 5} A collateral disability is "an adverse legal consequence of a conviction or judgment that survives despite the court's sentence having been satisfied or served." In re S.J.K., 114 Ohio St.3d 23, 2007-Ohio-2621, 867 N.E.2d 408, ¶ 10. An offender suffers under a collateral disability when he "may be subject to further penalties or disabilities under state or federal law even after a judgment has been satisfied." Id. at ¶ 14. A collateral disability "need not have an immediate impact or impairment but may be something that occurs in the future." Id. at ¶ 14. An appeal is moot "only if it is shown that there is no possibility [of] any collateral legal consequences." Wilson at 237, 325 N.E.2d 236, quoted in In re S.J.K. at ¶ 14.

{¶ 6} In 1996, the General Assembly enacted R.C. Chapter 2950 ("Megan's Law"), Am.Sub.H.B. No. 180, 146 Ohio Laws, Part II, 2560, providing for the classification and registration of sex offenders. In 2003, Megan's Law was amended by Am.Sub.S.B. No. 5, 150 Ohio Laws, Part IV, 6556, to provide for the classification and registration of an offender convicted of a "child victim oriented offense."

{¶ 7} Under the version of Megan's Law in effect in 2004, when Smith was convicted, his child-enticement convictions were, by definition, "child-victim oriented offense[s]." See R.C. 2950.01(S)(1)(a)(i). And he was, by operation of law, classified as a child-victim-oriented offender for purposes of the duty to register imposed by R.C. 2950.041(A)(1)(a). Thus, Smith was upon his August 2007 release from confinement, and he remains until August 2017, subject to the ten-year registration requirements of then-effective R.C. 2950.041, along with any sanction that might be imposed under R.C. 2950.99 for violating his duty to register. See former R.C. 2950.041(F) and 2950.07(A)(1) and (B)(3) (effective July 31, 2003). Accord State v. Tucker, 1st Dist. Hamilton No. C–130026, 2013-Ohio-5102, 2013 WL 6118355 (holding that defendant's 2004 conviction for the child-victim-oriented offense of abduction required him, upon his 2007 release from confinement, to register under former R.C. 2950.041(A)(1) as a child-victim-oriented offender).

{¶ 8} The registration and reporting requirements imposed under Megan's Law are not part of an offender's sentence. State v. Cook, 83 Ohio St.3d 404, 417, 700 N.E.2d 570 (1998). Therefore, Smith completed his sentences in August 2007, when he was released from confinement. But his duty to register as child-victim-oriented offender, with the accompanying risk of sanctions for violating that duty, constitutes a collateral disability that survives his completion of the sentences imposed upon his child-enticement convictions. Accordingly, his appeals from the overruling of his motions to vacate those convictions are not moot.

The Child–Enticement Statute and Romage

{¶ 9} We also hold that the municipal court erred in not granting Smith the relief sought in his motions. Smith was convicted in 2004 on two counts of criminal child enticement in violation of the 2001 version of R.C. 2905.05. That version of the statute proscribed criminal child enticement as follows:

(A) No person, by any means and without privilege to do so, shall knowingly solicit, coax, entice, or lure any child under fourteen years of age to accompany the person in any manner, including entering into any vehicle or onto any vessel, whether or not the offender knows the age of the child, if both of the following apply:

(1) The actor does not have express or implied permission of the parent, guardian, or other legal custodian of the child in undertaking the activity.

(2) The actor is not a law enforcement officer, medic, firefighter, or other person who regularly provides emergency services, and is not an employee or agent of, or a volunteer acting under the direction of, any board of education, or the actor is any of such persons, but, at the time the actor undertakes the activity, the actor is not acting within the scope of the actor's lawful duties in that capacity.

{¶ 10} Before it was amended in 2001, the child-enticement statute had proscribed knowingly soliciting, coaxing, enticing, or luring a child under 14 "to enter into any vehicle." Am.Sub.S.B. No. 321, 140 Ohio Laws, Part I, 1192, 1211. In 1988 and 1989, we held that the pre–2001 version of the statute was not unconstitutionally vague or overbroad. See State v. Long, 49 Ohio App.3d 1, 2, 550 N.E.2d 522 (1st Dist.1989) ; State v. Kroner, 49 Ohio App.3d 133, 134–135, 551 N.E.2d 212 (1st Dist.1988).

{¶ 11} The 2001 amendment broadened the statute's proscription, prohibiting a person from knowingly soliciting, coaxing, enticing, or luring a child under 14 "to accompany the person in any manner, including entering into any vehicle." (Emphasis added.) S.B. No. 312, 148 Ohio Laws, Part V, 11668. In 2005, in State v. Clark, 1st Dist. Hamilton No. C–040329, 2005-Ohio-1324, 2005 WL 678565, ¶ 8, we followed our decisions in Long and Kroner to hold that the 2001 version of the statute was not overbroad.

{¶ 12} In 2008, R.C. 2905.05 was again amended, to additionally prohibit, under division (B) of the statute, the act of violating division (A) of the statute "with a sexual motivation." S.B. No. 10, 152 Ohio Laws, Sec. 1. But division (A) of the statute remained unchanged.

{¶ 13} Thereafter, R.C. 2905.05(A) was held to be unconstitutionally overbroad by the Second Appellate District in 2008, State v. Chapple, 175 Ohio App.3d 658, 2008-Ohio-1157, 888 N.E.2d 1121, ¶ 18 (2d Dist.) ; by the Tenth Appellate District in 2012, State v. Romage, 2012-Ohio-3381, 974 N.E.2d 120 (10th Dist.) ; and by the Ninth Appellate District in 2013, State v. Goode, 2013-Ohio-556, 989 N.E.2d 107 (9th Dist.). And the Eighth Appellate District, in 2009, struck down as overbroad a substantially similar municipal ordinance. Cleveland v. Cieslak, 8th Dist. Cuyahoga No. 92017, 2009-Ohio-4035, 2009 WL 2462647, ¶ 16.

{¶ 14} In 2014, the conflict between those appellate court decisions and our decision in Clark was resolved when the Ohio Supreme Court in State v. Romage, 138 Ohio St.3d 390, 2014-Ohio-783, 7 N.E.3d 1156, held that R.C. 2905.05(A) was unconstitutionally overbroad. The court concluded that R.C. 2905.05(A)"sweeps within its prohibitions a significant amount of * * * activity" protected by the First Amendment, because it prohibits soliciting, coaxing, enticing, or luring a child without requiring aggression toward the victim or the intent to commit an unlawful act,¹ and because the "common, ordinary meaning of the word ‘solicit’ encompasses ‘merely asking’." Id. at ¶ 10–11, 18. The court further determined that the statute's unconstitutional overbreadth could not be cured by severing or narrowly construing the term "solicit." Id. at ¶ 15–16. Thus, the court "invalidated" R.C. 2905.05 on the ground that it was unconstitutionally overbroad. Id. at ¶ 8 and syllabus.

Jurisdiction to Grant Relief

{¶ 15} In cases on direct appeal, we have followed the Supreme Court's decision in Romage to reverse child-enticement convictions and order the defendants discharged. See State v. Cobia, 1st Dist. Hamilton No. C–140058, 2015-Ohio-331, 2015 WL 408276, ¶ 12 ; State v. Rebholz, 1st Dist. Hamilton No. C–130636, 2014-Ohio-2429, 2014 WL 2566289, ¶ 3–4. But Smith did not appeal his convictions. Instead, in March and June 2015, over 11 years after he had been convicted and almost eight years after he had, in August 2007, completed the sentences imposed for his offenses, Smith filed with the...